[2025] KEBPRT 257 (KLR)

Geca Supplies Ltd v Mukta Shah of the Estate of the Late Shahntabai G. Shah (Tribunal Case E865 of 2024) [2025] KEBPRT 257 (KLR) (14 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 257 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E865 of 2024

A Muma, Member

April 14, 2025

Between

Geca Supplies Ltd

Applicant

and

Mukta Shah of the Estate of the Late Shahntabai G. Shah

Respondent

Ruling

A. Parties And Their Representatives 1. The Applicant, Geca Supplies Limited, is the Tenant of the suit premises in this matter, who occupies the rented space erected at LR 209/136/106, Kilome Road (hereinafter known as the ‘suit premises’)

2. The firm of Njeru Nyaga and Company Advocates represents the Tenant/Applicant in this matter.

3. The Respondent, Mukta Shah of the Estate of the Late Shahntabai G. Shah, is the Landlord of the suit premises.

4. The firm of B. Kimathi Advocates represents the Landlord/Respondent in this matter.

B. Background Of The Dispute 5. The Tenant moved this Tribunal vide a Notice of Motion Application dated 24th June 2024 filed under a certificate of urgency of an even date. The Tenant sought orders inter alia that:a.the warrants of attachment issued to Five Eleven Traders and the proclamation notices issued by the said Five Eleven Traders be set aside;b.the Tribunal declares the rent payable by the Tenant;c.the Tribunal restrains the Landlord from unlawfully levying distress for rent; andd.the costs of the application be provided for

6. On 8th July 2024 this Tribunal granted the orders in (a) and (c) and directed the Tenant to serve the Application upon the Landlord for inter-partes hearing on 24th July 2024.

7. On 24th July 2024, this Tribunal directed the Tenant to carry on with rent payment obligations for the occupied space to the tune of Kshs. 71,048. The Tribunal directed the Landlord to file their Replying Affidavit and gave further directions on the timelines for filing submissions.

8. On 18th November 2024, this Tribunal directed a Rent Inspector to visit the suit premises and prepare a valuation report. Both parties were required to be present for verification purposes.

9. The inspection was conducted by Mr. Samuel Lelemoyug on 21st February 2025. Mr. Lelemoyug filed an inspection report of the findings upon concluding the inspection.

10. The findings in the report are that the Tenant operates three shops on the suit premises. The Tenant had sublet two of the shops to other businesses. The inspector attached photographs to support his findings.

C. Tenant’s Case 11. The Tenant faults the Landlord for claiming rent arrears for Shop A measuring 132 square meters. The Tenant avers that the Landlord took over the shop from Darnell Brands, they have attached letters dated 1st April 2022 addressed to the Tenant by both the Landlord and their Advocates.

12. The Tenant urged the Tribunal to order the Landlord to refund them the Kshs. 111, 648 that the Tenant had paid to the Auctioneers that had been instructed by theLandlord to levy distress for rent.

D. Landlord’s Case 13. The Landlord’s position is that the warrants of attachment were rightfully issued and ought not to be set aside. The Landlord maintains that the occupancy of shop B has been a non-issue and that the Tenant had outstanding arrears of Kshs. 87,648. The Landlord also stated that the said arrears were cleared in 2 installments of Kshs. 63,648 and Kshs. 24,000 on 5th and 10th July 2024 respectively.

14. The Landlord referenced the Tribunal’s Ruling delivered on 19th January 2024 wherein the Tenant was ordered to pay a monthly rent at the rate of Kshs. 166 per square foot for the suit premises. Based on these directions, the Landlord submitted that the total rent payable for the suit premises is Kshs. 77,356.

15. The Landlord urged the Tribunal to dismiss the Tenant’s Application with costs.

E. Issues For Determination 16. Having carefully perused the Application presented before this Honorable Tribunal by the parties. It is therefore my respectful finding that the issues for determination are as follows:i.Whether the Landlord ought to refund the Tenant the sum of Kshs. 111,648. ii.Who should bear the costs of the instant matter?

F. Analysis And Determination I. Whether the Landlord ought to refund the Tenant the sum of Kshs. 111,648 17. The Tribunal first seeks to clarify the confusion poised as to the proper position of the suit premises in the instant matter. From a cursory perusal of the Ruling dated 19th January 2024, the Tenant occupies the following premises:a.Geca Office Supplies Shop measuring 279 Square feet;b.Wines and Spirit shop within Geca Office Supplies measuring 55 square feet; andc.Shop A measuring 132 square feet.

18. From paragraph 17 of the Ruling, it is evident that the Tenant had instructed their valuers to conduct valuation of the 3 premises and omitted shop B from the instructions. It is therefore absurd for the Tenant to come back to the Tribunal and aver that they occupy shop B and not shop A.

19. The Tribunal agrees with the Landlord’s assertions under paragraph 7 of the Replying Affidavit dated 23rd August 2024 as to the premises occupied by the Tenant.

20. The Tribunal directed the Tenant to pay a monthly rent at the rate of Kshs. 166 per square foot for the entire suit premises. The Tenant ought to pay Kshs. 77,356 as the monthly rent for the entire suit premises.

21. The Tenant’s argument that the total monthly rent for the suit premises is Kshs. 71,048 is erroneous and misleading. The figure was based on a misguided cumulation of the total number of feet occupied by the Tenant.

22. On the other hand, by the time the Landlord was levying distress for rent, they had issued a letter dated 19th February 2024 requiring the Tenant to pay a sum of Kshs. 92,960.

23. The Tribunal finds that the figures quoted by both parties do not tally the directions issued vide the Ruling dated 19th January 2024.

24. Based on the parties’ submissions, it is clear that the Tenant had outstanding monthly arrears of Kshs. 6,308 by the time the Landlord was levying distress in June 2024. The total outstanding rent was therefore Kshs. 31,540.

25. The Tribunal therefore finds that the Landlord’s purported levy of distress for rent for the sum of Kshs. 87,648 had no legal basis. The Landlord shall reimburse the Tenant a sum of Kshs. 80,108. Or offset the same with future rent.

a. Who should bear the costs of the instant matter? 26. Section 12 1(k) accords this tribunal the powers to award costs with respect to applications and references made to it. It is trite law that costs follow event.

27. In Republic vs Rosemary Wairimu Munene, Ex-Parte Applicant Vs Ihururu Dairy Farmers Co-operative Society Ltd Judicial Review application no 6 of 2014 the court held as follows: -“The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event....... It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.’’

28. Each party shall bear its own costs.

G. Orders 29. In the upshot the Tenant’s Application dated 24th June 2024 is partially allowed in the following terms:a.The Landlord shall reimburse the Tenant a sum of Kshs. 80,108. b.Each party shall bear its own costs.c.Orders of the Ruling dated 19th January 2024 shall abide.d.File closed in these terms.

HON A. MUMA MEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, DELIVERED AND SIGNED AT NAIROBI ON THIS 14TH DAY OF APRIL 2025 IN THE ABSENCE OF PARTIES.HON A. MUMA MEMBERBUSINESS PREMISES RENT TRIBUNAL